now they may win in a sort of brown v. board of education way. it's going to split 5-4 or whether you'll have a justice like roberts or some other on the more conservative side say wait a minute, i know which way history is going. i'm not sure i want my wikipedia entry or obituary to have a second paragraph, he was on the wrong side of history. >> do you think justice scalia is thinking that? >> i think he's one of the less likely of the justices. certainly kennedy and roberts. the real question to me is roberts. roberts obviously realizes he's the chief justice and has got to play to history. look at brown versus board of education. none wanted to be the one standing in front of that train. we all know which way the movement is going. it's going to look silly 20 years from now. i suspect they could find a way such as saying there's no standing among the people who are bringing this case because they're not harmed. that's a very narrow way you could decide this case without being on the wrong side of history. just say the people bringing this cas